Costillo v. State

The appeal is from a sentence of thirty-five years in the penitentiary on a charge of statutory rape.

The prosecuting witness, Antonio Espinosa, is a niece of appellant and lived with him in his home in Atacosa County. She was born June 13, 1927, and was under fifteen years of age at the date of the alleged offense on or about March 1, 1942. The evidence discloses that an illicit relationship existed between the prosecutrix and appellant for several years, first by persuasion of appellant, and later the practice was carried on frequently on the solicitation of prosecutrix.

We find eleven bills of exception in the record, none of which, in our opinion, reflect error. When the case was called for trial, a motion for continuance was timely made for two witnesses who were said to be somewhere in the armed forces of the government and could not be brought into court. The trial court found that due diligence had not been exercised to secure their evidence in the case, but we think this was immaterial because the evidence was not admissible under the developed facts. The motion declared the purpose to prove by the absent witnesses the previous unchaste character of the prosecutrix. All of the necessary facts to make this proof were testified to by the prosecutrix herself. She told of repeated acts taking place between her and appellant more than a year before the return of the indictment. However, such an issue will not avail as a defense because she was under fifteen years of age.

Objection was made to the testimony of prosecutrix as to her age and also to the fact that her parents and grandparents were dead. It was probably the theory of the State that it was necessary to show the death of her parents and grandparents in order to make admissible the testimony of the prosecution as to the full history regarding her age. (See Nolan v. State,206 S.W. 92, and Johnson v. State, 59 S.W. 899). She testified that she knew her age and that she was born June 13, 1927. She also gave the family history including statements of the grandmother and of her baptismal certificate. Objection to this evidence is found in Bill No. Three, which is duplicitous and fatally defective.

The two questions most insisted upon in the oral presentation of the case are that it is not shown that the offense was committed in Atascosa County and that there was penetration. On these subjects the evidence is positive and unequivocal. We quote from the testimony: "I know Geronimo Costillo when I see him. I see him in the court room here. This man sitting right there. That is the man that put his male organ in my female organ and used me up there, that is the same one. That is the father of that child. I have never been married to Geronimo Costillo at any time. Geronimo Costillo used me and put his male organ in my female organ and that happened in Atascosa County, Texas."

It is further insisted that there is no evidence to show that the alleged act took place within a year of the return of the indictment. The prosecutrix testified that the conduct between her and appellant continued up to the time he took her to San Antonio for the purpose of shielding her in the birth of her baby. This was March 9, 1942. The only evidence introduced by appellant when the State closed its case was the file mark of the indictment, which was October 19, 1942. We see no grounds for raising this question.

Bills of exception also complain of the argument of the prosecution to the effect that the girl involved was without parents living and it was the duty of appellant to protect her. This seems to have been in accord with the facts of the case. He was her uncle and she made her home with him. Having assumed this responsibility, we see no ground for complaint that the evidence on the subject was called to the attention of the jury in the manner set out in the bill. We find no error in the proceeding and conclude that the judgment of the trial court should be, and it is, affirmed.

ON MOTION FOR REHEARING.